Alternative opinion on owner-occupier crofters' right to apply for a decrofting direction

27 February 2013

Yesterday the Crofting Commission announced that, based on legal advice sought and obtained by them, it did not appear competent for them, on the application of an owner-occupier crofter who is occupying their croft, to make a direction that the croft (or part of it) shall cease to be a croft. Accordingly, they are no longer accepting any new applications to decroft from owner-occupier crofters until further notice. In the meantime, they will hold all current applications for decrofting from owner- occupier crofters in abeyance, as they believe that to issue a direction in such cases would entail them acting outwith their powers, as set out in the current legislation.

It would appear that the legal advice in question suggested that under a provision in the Crofters (Scotland) Act 1993 (“the 1993 Act”) crofts occupied by owner-occupier crofters are deemed not to be vacant and therefore section 24(3), which deals with decrofting, cannot apply to occupied owner-occupied crofts as that section applies “where a croft is vacant”.

I believe that a different interpretation can be put on this which should allow owner-occupier crofters to continue to apply to the Crofting Commission for decrofting directions without question.

Firstly, it is assumed that the provision in the 1993 Act whereby it is considered that crofts occupied by owner-occupier crofters are deemed not to be vacant is section 23(10). That reads:-

“For the purposes of this section and sections 24 and 25 of this Act, a croft shall be taken to be vacant notwithstanding that it is occupied, if it is occupied otherwise than by—

(a) the tenant of the croft;

(b) the owner-occupier crofter of the croft;

(c) the subtenant of a sublet to which section 27 applies; or

(d) the tenant of a let to which section 29A applies”

I do not believe that this necessarily means that a croft occupied by an owner-occupier crofter, or any of the three tenants listed, can never be classed as vacant under provisions of the 1993 Act. This provision is really just stating that if someone who does not fall within the four categories listed is in occupation of the croft then that croft shall be treated as vacant notwithstanding the occupation in question.

Section 23 (12A) of the 1993 Act is the section that the Crofting Commission state was, as they understand it, intended “to amend sub-section 24(3) in order to extend the existing decrofting provisions to owner-occupier crofters”. I believe that it does arguably achieve that purpose. It reads:-

“Where the owner-occupier is an owner-occupier crofter, this section and section 24 have effect as if—

(a) the owner-occupier crofter were required under subsection (1) of this section, within one month of becoming such an owner-occupier crofter, to give notice to the Commission of that fact; and

(b) the reference to a landlord in subsection (2), and any reference to a landlord in section 24, included a reference to an owner-occupier crofter.”

I would suggest that the reference back to subsection (1), which subsection relates to situations where a croft has become vacant, means that in effect an owner-occupier crofter is deemed to be occupying a vacant croft for the purposes of section 24 (which relates to decrofting in the case of vacancy).

Thus an application for decrofting by an owner-occupier crofter is competent and should be processed as such by the Crofting Commission.

There is no doubt that the 1993 Act is badly drafted in places resulting in it being open to different interpretations. However, I believe that the Land Court is more likely to take a pragmatic approach to that interpretation based upon the spirit of the Act and intention of the Scottish Parliament. The Crofting Commission should not be halting procedures based on one possible interpretation where the effect of so doing will be dramatic on the lives of those crofters and third parties affected by it. Until such time as the issue is formally and legitimately challenged in the Land Court, which may never happen, the Crofting Commission should withdraw the stance taken by it yesterday and continue to process applications for decrofting directions by owner-occupier crofters in the manner that they were doing prior to yesterday’s announcement.
Brian H. Inkster
Glasgow, 27 February 2013

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